A Family’s Fight for Medical Freedom

David Smith and his wife Diane are Christian missionaries. They have a seven-month old daughter, Abigail, and are expecting a second child in December. They are living a nightmare that began three years ago when David found out he had the early stages of Hodgkin’s lymphoma. He lived through four terrible months of radiation therapy, and thought his battle with cancer was over.

But the tumor came back with a vengeance. In March of this year, they found that the cancer had metastasized to David’s bones, and he was pronounced to be in stage IV Hodgkin’s, the worst stage of the disease. David was advised to undergo chemotherapy, which can be curative for Hodgkin’s disease but has major, potentially fatal, side effects.

David refused chemotherapy, believing that since he had already had radiation therapy, the additional side effects of chemotherapy could, in his case, be fatal. Diane, who is a registered nurse, agreed. After researching less toxic options, they went to Dr. Burzynski’s clinic in Houston, Texas, for evaluation and treatment.

Dr. Burzynski told David that although antineoplastons seem to be helpful with lymphoma, a cancer with similar characteristics to Hodgkin’s disease, he was not confident it would be effective for Hodgkin’s disease. Nonetheless, David asked Dr. Burzynski to evaluate him and start therapy, which he did on April 1, 1996.

On May 15, after roughly seven weeks of treatment, a bone scan showed that the antineoplaston therapy was working well. The largest and most clearly defined metastasis to the L-1 vertebrae had virtually disappeared, and there was a lessening of cancer in all other sites. In addition, David was tolerating the therapy without any side effects, and it had totally alleviated the skin itching and bone pain that characterize advanced Hodgkin’s disease.

Dr. Burzynski then petitioned the FDA to issue a “compassionate use IND” (Investigational New Drug) on David’s behalf so that he could continue the antineoplaston treatment. The FDA routinely approves the use of drugs in such cases, but in this case they refused.

On May 23, knowing that David Smith had refused chemotherapy and why, Robert J. DeLap, M.D., acting director of the FDA’s Division of Oncology Drug Products, wrote that it was “not acceptable” for David to continue antineoplastons, and ordered Dr. Burzynski to stop treatment.
We helped David hire attorney Jonathan Emord to appeal his case to the FDA. In his affidavit, David wrote: “Antineoplaston treatment has provided me with the first significant improvements I have experienced. I will not permit chemotherapy to be used on me because I will not accept the risks associated with it. I do not believe I am well enough to survive a chemotherapy regimen and my wife, a registered nurse, agrees.

“If, following treatments with antineoplastons, I believe—based on my physician’s advice—that antineoplaston treatment is not working, I will then consider all other available treat ments, including chemotherapy. I implore the FDA to give me my preferred treatment. If I am denied it now, I will not accept treatment with chemotherapy, which may well mean that I will die.”

…And Issued a Death Sentence
DeLap, a doctor turned dictator, said “no.” In effect , Robert DeLap has said, “David, I don’t care what you want. You will do it my way or die.”

In 1996, David Smith, a US citizen, brings new insight to Patrick Henry’s oft-quoted statement, “Give me liberty or give me death.” In David Smith’s case, the statement is clearly defined. He is either going to fight for his life on his terms, using the medical therapy that he knows is best for him (because only he can decide that) or he is going to die.

Unprecedented Bureaucratic Power
Folks, our country has become more fascist than free. Our elected officials have relinquished their power to regulatory bureaucrats who function in the rarefied air of absolute power. Robert DeLap was not elected. You likely have never heard of him, and he has little accountability to anyone. He is never scrutinized by the media. Yet he has the power to make life-and-death “decrees” just like kings and queens of old.

Decrees, by definition, are arbitrary, based on the whim of those with the power to grant them. This is certainly true in David’s case. There is no justification for DeLap’s decree that David must submit himself to chemotherapy as his only option. DeLap could just as easily and legally have granted David’s plea to continue his chosen therapy.

David Smith Is Not Free
David Smith is no longer a US citizen. He is a US “subject” of the many bureaucratic dictators that have taken over. He is now begging his FDA dictator for his life, just as millions of subjects have begged for freedom or mercy in centuries past.

Perhaps Robert DeLap does not like Dr. Burzynski, or perhaps, like all dictators, he hates men and women who want to live freely and make their own decisions. Consequently, David Smith must die, and Diane must raise her two young children alone. I, for one, don’t think Diane should be widowedon the whim of Robert DeLap.

Jonathan Emord has filed suit asking for an injunction to prevent the FDA from blocking David Smith’s access to his chosen therapy. Newly appointed federal district judge James Robertson ruled against David, affirming Robert DeLap’s jurisdiction over David’s choice and life.

In suits of this nature, affidavits are needed to support the legitimacy of the plaintiff’s claim. I am proud to be the doctor who stood up in court to support David Smith’s right to choose his own medical therapy and thus his destiny. I have reviewed David’s medical records and not only do I support his right to choose, I believe he has made the right choice.

Antineoplastons were undoubtedly working for David. He has been without them now for two weeks. His itching and bone pain have returned full force, and like a ship slowly sinking, David Smith is slowly dying.

“Each patient is different. Each must make his or her own decision to accept or reject a certain treatment. Each brings with him or her a unique life history, sensitivity to pain, and will to live.

“We as physicians have a duty to our patients to keep them fully informed of their treatment options and of the risks and benefits of treatments.We can recommend treatments for the terminally ill but we cannot compel compliance with our wishes. To compel compliance invades the ultimate right of the patient. to control his or her own destiny by making ultimate life-affecting decisions. If David Smith is denied the opportunity to receive antineoplastons, he will surely die.

“While no one can predict if antineoplastons will cure David Smith, we do know that denying him this treatment ensures his death in the light of his decision to forego chemotherapy.

“I regard the government’s refusal to allow David Smith to receive his preferred treatment to be the equivalent of a death sentence. Knowing that he will not undergo chemotherapy, the government has nevertheless denied David Smith his chosen treatment–a treatment that could save his life.

“As a physician trained to do all in my power to preserve life, I view this decision as morally and ethically unconscionable and indefensible.”

Loss of Freedom Affects Us All
In the end, the court would not grant the injunction sought against the FDA. David Smith was forced to go outside the country to receive the treatment he desired.

The loss of medical freedom won’t affect you or your family until you need it. As Diane Smith told me, she had no idea that just seeking out medical options could turn into such a nightmare. Some day, you might find yourself living the same nightmare because you didn’t act now to preserve your right to choose the doctor and therapy you want. Support the Whitaker Health Freedom Foundation.